Facts of the case

James Garcia Dimaya, a native and citizen of the Philippines, was admitted to the United States as a lawful permanent resident in 1992. In 2007 and 2009, Dimaya was convicted under the California Penal Code for first-degree residential burglary; both convictions resulted in two years’ imprisonment. Under the Immigration and Nationality Act (INA), a non-citizen convicted of an aggravated felony is subject to deportation. The INA definition of aggravated felony includes a “crime of violence,” which is any offense that involves the use or substantial risk of physical force against another person or property.The Department of Homeland Security (DHS) subsequently initiated deportation proceedings against Dimaya and claimed that his burglary convictions constituted crimes of violence under the Act. The Immigration Judge held that Dimaya was deportable and that burglary constitutes a crime of violence because it always involves a risk of physical violence. The Board of Immigration Appeals (BIA) affirmed.

While Dimaya’s appeal to the U.S. Court of Appeals for the Ninth Circuit was pending, the U.S. Supreme Court decided Johnson v. United States, which held that the definition of a “violent felony” in the Armed Career Criminal Act (ACCA) was unconstitutionally vague. As a result, the U.S. Court of Appeals for the Ninth Circuit held that the INA’s crime of violence provision was unconstitutionally vague because it was largely similar to the violent felony provision in the ACCA that the Supreme Court struck down in Johnson. The appellate court found that both provisions denied fair notice to defendants and failed to make clear when a risk of violence could be considered substantial.

Question

Is the Immigration and Nationality Act’s “crime of violence” provision unconstitutionally vague under the Due Process Clause of the Fifth Amendment?

John G. Roberts, Jr.:

Edwin S. Kneedler:

Mr. Chief Justice, and may it please the Court: The court of appeals held that the definition of crime of violence in 18 U.S.C 16(b) is unconstitutionally vague on its face, relying on this Court's decision in Johnson, holding the residual clause in the Armed Career Criminal Act unconstitutionally vague. That was wrong for two reasons.

First, the standard of vagueness applicable in an immigration proceeding is not the same as in a criminal proceeding, because the Constitution does not require prior notice that conduct will give rise to removal and also because the immigration laws have long been administered by the executive and administrative proceedings because -- under broad delegations of authority because of the close relation of immigration to foreign relations and national security. Second, though, in any event, under the criminal vagueness standard applied in Johnson 16(b) is not unconstitutional as exemplified by this Court's unanimous decision in Leocal and the more than -- and the more than 30 years that 16(b) has been on the books --

Ruth Bader Ginsburg:

But, Mr. Kneedler, didn't the government argue in -- when Johnson was before us, that if the ACCA residual clause was invalid, then 16(b) would be vulnerable because it was subject to the same central objection.

Wasn't that the government's argument?

Edwin S. Kneedler:

Well, the -- the United States was responding to the argument that -- that was made in Johnson, which was broader than the Court's ultimate rationale.

The -- to the extent substantial risk alone was thought to be a problem, the Court made clear in Johnson that cases involving references to substantial risk are not inherently problematic and, in fact, there are -- there are many such -- such ones. The Court focused its analysis on two different aspects, but they -- but they have features that 16(b) does not have and make 16(b) very distinctive.

And, in fact, that's the reason why 16(b) has not given rise to the interpretive confusion that finally led this Court in Johnson to hold the ACCA provision unconstitutional.

Sonia Sotomayor:

I thought the Johnson, two features at issue were the fact that we were asking courts to imagine what the ordinary crime was, and there was no way to even think about what that was. Your adversary points out, with burglary, if the ordinary crime is during the day, there's one level of risk.

If it's at night, there's a different level of risk.

The nature of the entry is at question, whether it's forcible or merely walking through an open door uninvited.

It may be easier with burglary for lots of reasons, but there -- the level of what -- or what constitutes an ordinary crime was somewhat at the center of Johnson.

Why isn't it at the center here?

Edwin S. Kneedler:

Because I -- I -- there are several very important distinctions between this case and Johnson with -- with respect to that. The -- the ACCA residual clause spoke in terms of a serious potential risk that serious injury to another person might -- might result.

And as the Court pointed out, that created uncertainty about things that could happen even after the offense was committed and injury to people, bystanders or anyone else it could be. Section 16(b) is very different in that respect.

It asks whether the offense by its nature presents a substantial risk that physical force will be used against the person or property of another, and that's very different in several respects. It confines the analysis in both a temporal and functional sense to the elements of the offense. You don't look at what conduct might -- might have happened afterward.

It focuses narrowly on the elements of the offense because the -- the question is whether the use of physical force might be used in the course of committing that offense.

Elena Kagan:

Well, may I ask, Mr. Kneedler, because this aspect of your brief was confusing to me because sometimes you're talking about temporal, and sometimes you're talking about functional. And I want to know what you think the real limitation is.

So take the example that you use, which is the possession of a shotgun example; right?

Edwin S. Kneedler:

Right.

Elena Kagan:

And you say that that would fall outside of Section 16.

Edwin S. Kneedler:

Right.

Elena Kagan:

And the question is why? Temporally, you know, you're possessing a shotgun when you shoot somebody.

You can't do it any other way.

So the temporal analysis doesn't work.

So what is it about that example that makes it fall outside of Section 16, whereas you argued it would have fallen inside of ACCA?

Edwin S. Kneedler:

Well, the -- well, first of all, in ACCA that was part of the confusion.